Order of Removal—Jurisdiction—Metropolitan Police Court-3 & 4 Vict. c. 84. -Settlement-Emancipation.

An order of removal purported to be made by B. C, "one of the magistrates of the police courts of the metropolis, sitting at the Clerkenwell Police Court, within the metropolitan police district":-Held, that this sufficiently shewed that the Clerkenwell Police Court was a court appointed under the provisions of 3 & 4 Vict. c. 84.

The examinations stated that the pauper's father resided in H. up to the year 1826, when he removed to another parish; that the pauper resided with his parents in H. as part of their family, and was then under twenty-one; and that in 1816 the father acquired a settlement in H. :-Held, that nothing appearing to the contrary, it was to be presumed that the pauper was unemancipated in 1816, and took his father's settlement.

On an appeal against the following order of removal, the Sessions for the county of Middlesex confirmed the order, subject to the opinion of this Court upon a

CASE.

"Metropolitan Police

Whereas com

District, to wit. Splaint hath been made unto me, Boyce Combe, one of the Magistrates of the police courts of the metropolis, sitting at the Clerkenwell Police Court, within the metropolitan police district, by the churchwardens and overseers of the poor of the parish of St. Pancras, that Sarah Eaton, aged thirty-three years, widow of John Eaton the younger, deceased, and her three lawful children [naming them] have come to inhabit in the said parish of St. Pancras, not having gained a legal settlement there, and that they are now actually chargeable to the said parish of St. Pancras. I, the said Magistrate, upon due examination of the premises taken upon oath and other circumstances, do adjudge the same to be true, and do also adjudge that the parish of Hammersmith, in the county of Middlesex aforesaid, is the place of the last legal settlement of the said Sarah Eaton and her said three children. [The order proceeded in the usual form, and concluded-] Given under

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my hand and seal, at the police court aforesaid, this 29th day of September, A.D. 1845. Boyce Combe (L.S.)" The following were the examinations on which the order was made, so far as they are material to this case. "Elizabeth Banting on her oath saith, I know Sarah Eaton, the examinant in this case. Her late husband, John Eaton the younger, now lately deceased, was my brother; he was the son of John Eaton the elder, by Elizabeth his wife, who are both dead. The said John Eaton the elder died in Lawrence Street, Chelsea, seventeen years ago, and his widow, the said Elizabeth, died there fourteen years ago. They always lived together as long as I can remember as husband and wife, and were reputed to be so by all persons who knew them. The said John Eaton the elder was a plumber and glazier, and resided for many years in the parish of Hammersmith, in the county of Middlesex, where he carried on that business. He left Hammersmith nineteen years ago, and went thence next to reside in Lawrence Street, Chelsea, and resided there until his decease, which happened two years after. My said brother resided with his parents in the parish of Hammersmith aforesaid, as part of their family; he was then under the age of twenty-one years, and I do not know nor do I believe that he ever did any act to gain a settlement elsewhere."

"Frederick Clark on his oath saith, in the year 1816 I was serving as an apprentice to John Eaton the elder, a plumber and glazier, then residing at No. 6, Angel Terrace, King Street, in the parish of Hammersmith, in the county of Middlesex ; I resided there with him for six years or thereabouts, namely, from the year 1816 till the year 1822. In the year 1816, he, the said J. Eaton, resided for more than forty days, and for several years thence next afterwards, in and upon a tenement of the yearly rent and value of 101. and upwards, consisting of a dwelling-house and premises, situate and being the house No. 6, Angel Terrace aforesaid, in the said parish of Hammersmith, in the county of Middlesex,. of which he was the tenant, and which he held, rented, and occupied of my father, W. Clark (since deceased), and resided therein for several years thence next after

the year 1816. I knew John Eaton the younger, the son of the above-named John Eaton, my late master, residing with his father at Hammersmith."

At the trial of the appeal, the appellants objected that the order ought to be quashed on the following (amongst other) grounds: -Firstly, that the order of removal was bad on its face, inasmuch as it failed to shew the jurisdiction of Boyce Combe, Esq. to make the same, the Clerkenwell Police Court not being named in any act of parliament as one of the courts or places at which a police magistrate may, when acting alone, exercise the jurisdiction of two Justices of the Peace in making an order of removal. And secondly, that the examinations failed to shew the settlement acquired by the father, John Eaton the elder, to have been so acquired by him at a time when his son John Eaton the younger was still living in and a member of his father's family. These objections were severally overruled by the Sessions, subject to the opinion of this Court. If this Court should be of opinion that either of these objections ought to have been allowed by the Court of Quarter Sessions, then the order of removal and order of Sessions confirming the same were to be severally quashed, otherwise the same to be confirmed.

Godson (Howarth was with him), in support of the order of Sessions.-By 2 & 3 Vict. c. 71. s. 2. a power is given to the Crown to alter the number of police courts in the metropolis; and by section 14. any one police magistrate may do any act at any of the courts mentioned in that act, or at any place where Her Majesty shall order any such court to be holden within the limits of the metropolitan district for the time being, which otherwise could only be done by two Justices. The 3 & 4 Vict. c. 84. s. 2. empowers the Queen, with the advice of her Privy Council, to constitute police court divisions within the metropolitan district, and to establish a police court for each of such divisions; and by section 5. every order in council for constituting a police court is to be published in the London Gazette, and is to take effect from the time appointed for that purpose in the order. An order in council constituting this Court at Clerkenwell has been published in the Gazette.

[LORD DENMAN, C.J.-We cannot take notice of that; the statute does not say that the order in council when so published shall be taken as part of the act.]

[COLERIDGE, J.-Even supposing we could do so, it might be a question whether the magistrate ought not on the face of this order to state that he acted under such authority.]

It is contended that the order appearing to be made at a police court within the metropolitan police district, and by one of the metropolitan police magistrates, sufficiently shews jurisdiction.

[COLERIDGE, J.-Certainly if such a special averment be necessary here, it is necessary in every act where jurisdiction must be shewn.]

The Court then called upon

Pashley, contrà.-This Court will not presume that the Clerkenwell Police Court is a place appointed under the provisions of the act referred to; it may be a publichouse of that name, and jurisdiction must be given unambiguously.

[COLERIDGE, J.-That objection would equally apply to one of the police courts named in 2 & 3 Vict. c. 71.]

An objection of this nature was held fatal in an affidavit, which does not require the same precision as an order-Balman v. Sharp (1).] This may be a police court independently of this act; and if the facts stated are consistent with a state of things which would not give jurisdiction the order is bad-The Queen v. Smith (2), The Queen v. Stockton (3).

[COLERIDGE, J. There we refused to draw an inference from the statement in the order here we take the statement as it stands.]

The respondents ask the Court to infer that the Clerkenwell Police Court is established under the act-The Queen v. Bloxham (4).

[WIGHTMAN, J.-The 2 & 3 Vict. c. 71. s. 1. recites certain existing courts, which must be taken to be all the police courts

(1) 16 Mee. & Wels. 93; s. c. 16 Law J. Rep. (N.S.) Exch. 39.

(2) 7 Q.B. Rep. 543; s. c. 15 Law J. Rep. (N.s.) M.C. 41.

(3) Ibid. 520; s. c. 14 Law J. Rep. (N.s.) M.C. 128. (4) 6 Ibid. 528; s. c. 14 Law J. Rep. (N.s.) Q.B.

13.

then established; then the 3 & 4 Vict. c. 84. gives the Queen power to appoint new courts within the metropolitan district. This then being a police court within the metropolitan district, and not one of those enumerated in the prior act, how can it be otherwise than appointed under the latter act?]

That act only gives power to appoint a police court for each division, which this is not stated to be. A statutable authority must be expressly alleged-Christie v. Unwin (5), The Queen v. Lynch (6). Next as to the question of settlement. It does not distinctly appear that the pauper's husband was not emancipated at the time when his father acquired the settlement in Hammersmith in 1816. No doubt it is stated that before that time he was living as part of his father's family and under twenty-one, but after 1816 the expression changes, and it is merely stated that he resided with his father, but not as part of the family.

[COLERIDGE, J.-Must we not assume the same state of facts to continue?]

The onus of proof here is on the respondents no argument can be drawn from the son being under twenty-one. In The Queen v. Leeds (7) the Court refused to consider the age as affecting a question of settlement. The Queen v. Bangor (8) was also referred to.

LORD DENMAN, C.J.-On the first point it appears that there are police courts besides those mentioned in the act under which they are constituted; and I do not think it need be expressly stated that this particular police court is one appointed under the statute. As to the other point, we are not to presume any new state of things since the time when the child was residing as part of the father's family: in the absence of anything to the contrary he will take the father's settlement.

PATTESON, J.-The order is good on the face of it, though perhaps it might have been altered by an affidavit shewing positively want of jurisdiction. The place is described as a police court, which it cannot be unless constituted under the act, and, in the ab

(5) 11 Ad. & El. 373; s. c. 9 Law J. Rep. (N.S.) Q.B. 47.

(6) 7 Irish Eq Rep. 263.

(7) 2 Q.B. Rep. 547, n.

(8) 16 Law J. Rep. (N.s.) M.C. 121.

NEW SERIES, XVII.-MAG. CAS.

sence of anything else, that shews jurisdiction. As to the settlement, it is said that no particular time is stated at which the pauper's husband was residing as part of his father's family; but he was only twelve years old when his father gained the settlement: he might possibly have become emancipated before that time; but we must look to the whole of the evidence; and I think the sense of it is very clear that the child was residing as part of his father's family at the time when the settlement was gained. If we were to presume that he was then emancipated, we should be going beyond the rule always acted upon and laid down in The King v. Hardwick (9).

way.

COLERIDGE, J.-I quite agree. This order shews jurisdiction in the ordinary The magistrate states that he is a magistrate of the police courts of the metropolis, sitting at the Clerkenwell Police Court within the metropolitan police district; and then, to put out of the question the possibility of "the police court" being, according to Mr. Pashley's argument, a public-house, he adds the jurat, "Given under my hand and seal at the police court aforesaid ;" that must be the police court within the metropolitan district mentioned. According to the ordinary sense of the words, he purports to be a magistrate sitting at one of the metropolitan police courts. With regard to the other point, the only difficulty I ever felt was, that some period of time ought to be shewn during which the child resided as part of the father's family; but there is nothing to shew that at the time when the father gained the settlement the child had ceased to reside as part of his family; and if so, he takes that settlement.

WIGHTMAN, J.-From the terms of the order it sufficiently appears that the magistrate was a metropolitan police magistrate sitting at one of the police courts for the metropolis, which he calls the Clerkenwell Police Court. Looking at the statute it is clear it must be one of the courts appointed under its provisions, for the 2 & 3 Vict. c. 71. enumerates all the existing police courts, and this court is not among the number; it must therefore have been a new court appointed under that act. On the other point I agree with the rest of the Court.

Order of Sessions confirmed. (9) 5 B. & Ald. 176.

H

No other instrument is necessary to authorize the detention of a servant sentenced by a Magistrate to imprisonment and hard labour for an offence under the 4 Geo. 4. c. 34. s. 3. than a warrant of commitment, founded on a sufficient information; and the legality of the imprisonment must depend on the legality and sufficiency of that instrument alone.

Semble-that such an instrument is an order and not a conviction.

Whether such an instrument is to be construed less strictly, as an order, or more strictly, as a conviction, it is bad if it does not shew on the face of it, either that the contract between the master and servant was in writing, in which case a failure to enter into the service is an offence under the act, or that the servant had entered into the service, in which case it is an offence in the servant to absent himself from his service, although the contract is not in writing.

John Deakin, at their colliery at Ince, in Mackerfield aforesaid, that William Leigh, of Wigan, in the said county, servant to the said James Whaley, Frederick Sewalis Gerard, and John Deakin, as a collier, at their works in Ince, in Mackerfield aforesaid, hath, in his service with the said J. W, F. S. G, and J. D, been guilty of divers misdemeanours and ill behaviour towards his masters, and particularly that the said William Leigh hath absented himself from the service of the said J. W, F. S. G, and J. D, before the time of his contract with them was completed, contrary to the form of the statute in that case made. And whereas, in pursuance of the statute in that case made and provided, I have duly examined the proofs and allegations of both the said parties touching the matter of the said complaint, and upon due consideration had thereof have adjudged and determined that the said William Leigh hath, in his said service, been guilty of divers misdemeanours, particularly that he, the said William Leigh, hath absented himself from the service of the said J. W, F. S. G, and J. D, before the term of his contract with them was completed, contrary to the form of the statute in that case made, I do therefore convict him, the said William Leigh, of the said offence, in pursuance of the statute in that case made and provided.

"These are, therefore, to command you, the said constable, forthwith to convey the said William Leigh to the said house of correction at Kirkdale aforesaid, and to deliver him to the keeper thereof, together with this warrant. And I do hereby command you, the said keeper, to receive the said William Leigh into your custody in the said house of correction, there to remain to hard labour for the space of two months from the date hereof, and for your so doing this shall be your sufficient warrant.

"Given under my hand and seal, the 23rd day of August, in the year of our Lord 1844 (1). "Colin Lindsay." (Seal).

(1) This commitment is founded on the 4 Geo. 4. c. 34. s. 3, which enacts, "That if any servant in husbandry, or any artificer, calico-printer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, labourer, or other person shall contract with any person or persons whomsoever to serve him, her, or them, for any time or times whatsoever, or in any other manner, and shall not enter into or commence his or her service before

It was then proved that Leigh was discharged by habeas corpus on the 17th of September 1844; that the defendant Lindsay was a Magistrate of the county of Lancaster; and that he was served with notice of action on the 14th of December 1844.

On behalf of the defendant, the following conviction on parchment, under the hand and seal of the defendant, which, it was admitted, had been drawn up after the discharge of the prisoner under the habeas, was put in and read:

"County of Lancaster, (to wit). Be it remembered, that on the 21st day of August, in the year of our Lord 1844, at Wigan, in the county of Lancaster, Adam Gregory, of Ince in Mackerfield, in the said county, underlooker and manager of James Whaley, Frederic Sewalis Gerard and John Deakin, then and still having and carrying on a colliery at Ince, in Mackerfield, in the said county, personally came before me, the Hon. Colin Lindsay, one of Her Majesty's Justices of the Peace in and for the said county, and residing within the said county, the term of his or her contract (such contract being in writing and signed by the contracting parties), or having entered into such service shall absent himself or herself from his or her service before the term of his or her contract, whether such contract shall be in writing or not in writing, shall be completed, or neglect to fulfil the same, or be guilty of any other misconduct or misdemeanour in the execution thereof or otherwise respecting the same, then and in every such case it shall and may be lawful for any Justice of the Peace of the county or place where such servant in husbandry, &c. shall have so contracted or be employed or found, and such Justice is hereby authorized and empowered, upon complaint thereof made upon oath to him by the person or persons or any of them with whom such servant in husbandry, &c. shall have so contracted, or by his, her, or their steward, manager, or agent,' which oath such Justice is hereby empowered to administer, to issue his warrant for the apprehending every such servant in husbandry, &c., and to examine into the nature of the complaint; and if it shall appear to such Justice that any such servant in husbandry, &c. shall not have fulfilled such contract, or hath been guilty of any other misconduct or misdemeanour as aforesaid, it shall and may be lawful for such Justice to commit every such person to the house of correction, there to remain and to be held to hard labour for a reasonable time, not exceeding three months, and to abate a proportionable part of his or her wages for and during such period as he or she shall be so confined in the house of correction, or in lieu thereof to punish the offender by abating the whole or any part of his or her wages, or to discharge such servant in husbandry, &c., which discharge shall be given under the hand and seal of such Justice gratis."

(that is to say), came before me at Wigan, in the said county, and informed me, upon the oath of the said Adam Gregory, that William Leigh, of Wigan in the said county, collier, did on the 4th day of April last past, contract with the said J. W, F. S. G, and J. D. to serve them as a collier at the said colliery, and that after having on the same day entered into such service according to his said contract, was in his said service with his said masters guilty of divers misdemeanours, and particularly that he, on the 9th day of August, A.D. 1844, did absent himself from the said service of his said masters before the term of his contract with them was completed, and has from thence hitherto continued so absent, contrary to the form of the statute in that case made and provided; whereupon in pursuance of the statute in that case made, the said William Leigh was on this 23rd day of August, in the year aforesaid, at Wigan in the said county, duly brought before me to answer the said complaint, whereupon I, the said Justice, did then and there proceed to examine into the nature and truth of the said complaint, in the presence and hearing of the said William Leigh; and the said Adam Gregory, being a credible witness, did then and there in the presence and hearing of the said William Leigh, upon his oath depose and swear that the said William Leigh, then being a collier, did on the 4th day of April, A.D. 1844, contract with the said J. W, F. S. G, and J. D, then having and carrying on the said colliery at Ince in Mackerfield, to serve them as a collier at their said colliery from the said 4th day of April, A.D. 1844, until the said William Leigh should give to the said J. W, F. S. G, and J. D. fourteen days' previous notice that he intended to quit the service of the said J. W, F. S. G, and J. D, and had served them for such fourteen days, and that he, the said William Leigh, did afterwards, (to wit), on the said 4th day of April, A.D. 1844, enter into the service of the said J. W, F. S. G, and J. D. as a collier at their said colliery, under and in pursuance of such contract for service; and that he, the said William Leigh, did continue to serve his said masters under and according to the said contract, at the said colliery, until the 9th day of August, A.D. 1844, and the term of the said contract being then subsisting and incomplete, he,